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PROHIBITIONS ON ASSIGNMENT: A CHOICE TO BE MADE

Published online by Cambridge University Press:  19 May 2014

G.J. Tolhurst  and
J.W. Carter
G.J. Tolhurst*
Affiliation:
Professor of Commercial Law, Faculty of Law, University of Sydney, Consultant, Herbert, Smith Freehills.
J.W. Carter
Affiliation:
Professor Emeritus, University of Sydney, Consultant, Herbert, Smith Freehills, General Editor, Journal of Contract Law.
*
Address for correspondence: University of Sydney, Sydney Law School, Eastern Avenue, Camperdown Campus, NSW 2006, Australia. Email: [email protected].
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Abstract

In recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, “the property view”, dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view, “the contract view”, dictates that such prohibitions operate only at the level of contract and cannot prevent the equitable assignment of the benefit of a contract. Both views have judicial and academic support. The view that is ultimately adopted will have important implications for contract drafting and the law of assignment. This paper explains both views and puts forward an argument for adopting the property view.

Keywords

Assignmentprohibitions on assignmentequitable assignmentdeclarations of trustcommercial construction
Type
Articles
Information
The Cambridge Law Journal , Volume 73 , Issue 2 , July 2014 , pp. 405 - 434
Copyright
Copyright © Cambridge Law Journal and Contributors 2014 

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References

1 [1994] 1 A.C. 85.

2 See also, Mulkerrins v PricewaterhouseCoopers [2003] UKHL 41 at [13], [2003] 1 W.L.R. 1937, 1941.

3 Another often used restriction is an express requirement of consent to an assignment. Usually consent is expressed as “not to be unreasonably withheld”. Based on the property view put forward in this paper, a unilateral waiver of a prohibition cannot of itself change the nature of a chose in action and give it the character of transferability although it may operate as a form of estoppel. Hence the importance of an express or implied provision for assignment with consent to be incorporated into the contract from the moment of formation.

4 Goode, Roy, “Contractual Prohibitions against Assignment” [2009] L.M.C.L.Q. 300Google Scholar.

5 [1994] 1 A.C. 85.

6 Ibid., p. 105.

7 Ibid., p. 108. In Parmalat Australia Ltd. v Pauls Ice Cream & Milk Pty Ltd. [2006] QCA 129 at [14], Williams J.A. suggested that Lord Browne-Wilkinson only upheld prohibitions where there was a “genuine commercial interest in ensuring that the contractual relations with the party selected were preserved”. It is not clear that that was the intention of Lord Browne-Wilkinson. That formulation is one used to determine whether an assignment savours of maintenance or champerty and appears at the end of that section of his speech dealing with prohibitions and public policy generally, see [1994] 1 A.C. 85, 107. He did not introduce it into the statement quoted in the text as to the operation of such clauses.

8 See also, [1994] 1 A.C. 85, 104, where Lord Browne-Wilkinson suggests that rarely would a prohibition be intended to operate as a mere promise not to assign. Usually prohibitions are drafted in such a way as to negate the power to assign. Logically, it would follow in the case of a promise not to assign that an assignment would be valid but result in a breach of contract, cf., R v Chester and North Wales Legal Aid Area Office (No. 12) [1998] 1 W.L.R. 1496, 1501 per Millett L.J. However, the case law suggests that a mere promise not to assign will usually be construed as intended to have the effect of negating the power to assign, e.g., Devefi Pty Ltd. v Mateffy Pearl Nagy Pty Ltd. (1993) 113 A.L.R. 225. Indeed, Linden Gardens was itself an example. An example of where the law gives effect to a promise not to assign is a pre-emptive right. A transfer of property to a third party in the face of a pre-emptive right is effective, leaving the grantee with a remedy for damages, Pata Nominees Pty Ltd. v Durnsford Pty Ltd. [1988] W.A.R. 36. This assumes the third party is not guilty of some fraud or other misconduct, and that the interest of the grantee does not become a proprietary interest when triggered so that the dispute becomes one of priority. Prior to the transfer, the grantee may obtain injunctive relief and there will be situations, such as a sale of shares in the face of a pre-emptive right, where the grantee can prevent the registration of the transfer, see Rathner v Lindholm [2005] VSC 399, (2005) 194 F.L.R. 291. Another example would be a clause drafted as a promise not to assign which has an express right to terminate for breach of that promise as opposed to a general right to terminate for any breach of the contract.

9 This is an important point. If Lord Browne-Wilkinson was adopting the contract view so that the assignment was effective, it would be necessary to explain in some detail how the assignor was nevertheless liable in damages to the assignee for failing in its obligation to assign. It could be based on the promise being one to put the assignee into a direct legal relationship with the obligor, such as a legal assignment. It could also be a failure to assign in equity if one takes the view that today an equitable assignment is a true transfer and does not simply provide the assignee with rights against the assignor. However, if the position is that equitable assignments of contractual rights only ever operate as between the assignor and assignee, it is difficult to see how the assignor will breach its promise to assign as most commercial assignments are grounded in a simple intention to assign (often without notice). Commercial people generally do not hold an intention to assign “at law” or “in equity”; these are just the legal effects of their intentions.

10 [1994] 1 A.C. 85, 109 per Lord Browne-Wilkinson.

11 Cf., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [41], (2006) 230 A.L.R. 56, 67.

12 A prohibition on assignment is for the benefit of the obligor and generally cannot be raised by anyone else to defeat an assignment, e.g., as between competing assignees. In theory an obligor could inhibit assignability for all purposes, but the circumstances in which an obligor would have an interest in doing so are rare and even then there is a policy issue as to whether that interest should be recognised, see further, Burck v Taylor (1894) 152 U.S. 634; Fortunato v Patten (1895) 41 N.E. 572. However, an assignment even as between the assignor and assignee that had the effect of upsetting the allocation of agreed risk between the obligor and assignor may be void for being at odds with the rule preventing the assignment from varying the agreed burden between the assignor and obligor.

13 There are situations where an obligor will be concerned to prevent the promisee assigning accrued rights under a contract, see Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 A.C. 85, 106 per Lord Browne-Wilkinson; Explora Group plc v Hesco Bastion Ltd. [2005] EWCA (Civ) 646.

14 [1994] 1 A.C. 85, 107.

15 Ibid., p. 108.

16 Lord Browne-Wilkinson explained away the one English case that stood in the way of recognising the efficacy of prohibitions on assignment, Tom Shaw and Co v Moss Empires Ltd. (1908) 25 T.L.R. 190, on the basis that it was either an example of how a prohibition cannot prevent an accounting between assignor and assignee when the fruits of the contract are in the hands of the assignor or was wrongly decided.

17 (1932) 258 N.Y.S. 254.

18 Ibid., pp. 261–62 (emphasis added).

19 Ibid., p. 264.

20 As quoted, that provision stated: “Where a claim or demand can be transferred, the transfer thereof passed [sic] an interest, which the transferee may enforce by an action or special proceeding, or interpose as a defense or counterclaim, in his own name, as the transferrer might have done; subject to any defense or counterclaim, existing against the transferrer, before notice of the transfer, or against the transferee.”

21 (1932) 258 N.Y.S. 262–63.

22 Property Law Act 1925 (UK), s. 136. See also Goode, Roy, “Contractual Prohibitions against Assignment” [2009] L.M.C.L.Q. 300, 305Google Scholar.

23 Tolhurst, G.J., The Assignment of Contractual Rights (Oxford 2006)Google Scholar, paras. [8.14]–[8.15].

24 At a theoretical level there is a view that a contract is created by a transfer of promises such that the parties own the promise made to them. The law is then required to protect that ownership and this is one way of explaining why a simple exchange of promises without reliance is enforceable, see Weinrib, E., “The Juridical Classification of Obligations”, in Birks, P. (ed.), The Classification of Obligations (Oxford 1997), 52–3Google Scholar; Benson, P., “The Unity of Contract Law”, in Benson, P. (ed.), The Theory of Contract Law (Cambridge 2001)CrossRefGoogle Scholar, ch. 4. Cf., The Commissioner of Stamp Duties (New South Wales) v Yeend (1929) 43 C.L.R. 235, 241.

25 (1993) 113 A.L.R. 225, 234–7. Cf., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [32]; (2006) 230 A.L.R. 56, 64.

26 (1993) 113 A.L.R. 225, at p. 239.

27 Ibid., p. 236.

28 Ibid., pp. 237, 239.

29 See note 22 above, at p. 304.

30 [2000] Ch. 291 (affirmed [2000] Ch. 291, 324).

31 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495.

32 Ibid., at pp. 305–6.

33 See note 22 above, at p. 305.

34 This is based on the view that an equitable assignment only operates as between the assignor and assignee. It necessarily follows on this view that it is not possible to prohibit equitable assignments, cf., Friary Holroyd and Healey's Breweries Ltd. v Singleton [1899] 1 Ch. 86 (reversed on the facts [1899] 2 Ch. 261, (1899) 81 L.T. 101).

35 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495.

36 [2000] Ch. 291 (affirmed [2000] Ch. 291, 324).

37 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495. See also Secure Parking (WA) Pty Ltd. v Wilson [2008] WASCA 268 at [101]. Cf., Australian Zircon NL v Austpac Resources NL (No 2) [2011] WASC 186 at [192]–[199]. See further Atwell v Roberts (No 3) [2009] WASC 96 at [79].

38 [2007] EWCA Civ 148 at [43], [2007] 1 Lloyd's Rep. 495, 506.

39 Ibid., at [44], and at p. 506.

40 Vandepitte v Preferred Accident Insurance Corp of New York [1933] A.C. 70.

41 [2007] EWCA Civ 148 at [45], [47], [2007] 1 Lloyd's Rep. 495, 506–507. See generally on this procedure, Smith, Marcus, “Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees”, (2008) 22 Trust Law International 140Google Scholar.

42 [2007] EWCA Civ 148 at [89], 1 Lloyd's Rep. 495, at p. 513.

43 Ibid., at [112], and p. 516.

44 Ibid., at [118], and p. 518.

45 Ibid., at [102], and p. 515.

46 Ibid., at [139], and pp. 520–21.

47 A possible alternative that may not be at odds with the property view is to interpret the assignment as an assignment of the “right” to the fruits of the contract. Where that right is future property it will take effect when the fruits are received by the assignor. However, it is not a simple assignment of the fruits but an agreement to assign the right to the fruits and so the interest of the assignee is more than merely contractual, see Meagher, R.P., Heydon, J.D. and Leeming, M.J., Meagher, Gummow and Lehane's Equity, Doctrines and Remedies, 4th ed., (Sydney 2002)Google Scholar, paras 6.275–6.330. This will not work where the “right” is not future property, see Tolhurst, G.J., The Assignment of Contractual Rights (Oxford 2006)Google Scholar, paras 6.33–6.47. See further, Smith, Marcus and Leslie, Nico, The Law of Assignment, 2nd ed., (Oxford, 2013), p. 532Google Scholar, para. 25.32, point (6).

48 See Heydon, J.D. and Leeming, M.J., Jacob's Law of Trusts in Australia, 7th ed., (Sydney 2006)Google Scholar, at [23.03].

49 [2007] EWCA Civ 148 at [29], [2007] 1 Lloyd's Rep. 495, 503.

50 See Goode, Roy, “Contractual Prohibitions Against Assignment” [2009] L.M.C.L.Q. 300, 305Google Scholar.

51 E.g., Re General Horticultural Company (1886) 32 Ch. D. 512, 515 per Chitty J.; Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 Ch. D. 128, 132 per Cotton L.J.; Anning v Anning (1907) 4 C.L.R. 1049, 1064 per Isaacs J.; Re Westerton [1919] 2 Ch. 104, 111 per Sargant J.; Re City Life Assurance Co Ltd. [1926] Ch. 191, 215 per Pollock M.R., at 220 per Warrington L.J.; Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 C.L.R. 614, 622 per Dixon J.; Holt v Heatherfield Trust Ltd. [1942] 2 K.B. 1, 4 per Atkinson J.; Corin v Patton (1990) 169 C.L.R. 540, 577 per Deane J.; Showi Shoji Australia Pty Ltd. v Oceanic Life Ltd. (1994) 34 N.S.W.L.R. 548, 561; Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak (2006) 67 N.S.W.L.R. 569, 607–8.

52 [2007] EWCA Civ 148 at [88], [2007] 1 Lloyd's Rep. 495, 513.

53 See, Drew & Co v Josolyne (1887) 18 Q.B.D. 590; Tooth v Hallett (1869) L.R. 4 Ch. App. 242.

54 E.g., Unidroit Principles of International Commercial Contracts, 2010, Art. 9.1.9. See also Unidroit Convention on International Factoring, 1988, Art. 6; United Nations Convention on Assignment of Receivables in International Finance, 2001, Art. 9; Personal Property Securities Act 2009 (Cth), s. 81; UNCITRAL Legislative Guide on Secured Transactions (U.N. New York 2010), paras. [106]–[110]. See further Akseli, Orkun, “Contractual Prohibitions on Assignment of Receivables: An English and UN Perspective” [2009] J.B.L. 650Google Scholar. Cf., McCormack, Gerard, “Debts and non-assignable clauses” [2000] J.B.L. 422Google Scholar.

55 E.g., Personal Property Securities Act, 2009 (Cth) s. 79. See also, The Law Commission, Company Security Interests (Law Com., No. 296, 2005), at 4.35–4.40.

56 International Swaps and Derivatives Association, Inc.

57 See further, Sacks v Neptune Meter Co (1932) 258 N.Y.S. 254, 268 per Frankenthaler J. See above note 8.

58 E.g., Cowell v Rosehill Racecourse Co Ltd. (1936) 56 C.L.R. 605; Hounslow London Borough Council v Twickenham Garden Developments Ltd. [1971] 1 Ch. 233; Decro-Wall International SA v Practitioners in Marketing Ltd. [1971] 1 W.L.R. 361, [1971] 2 All ER 216. Cf., the position with options even if drafted in the form of an irrevocable offer as opposed to a conditional contract, see generally, Goldsbrough Mort & Co Ltd. v Quinn (1910) 10 C.L.R. 674.

59 Cf., the treatment of pre-emptive rights, see note 8 above.

60 One might answer this by saying that the transaction which results, an equitable assignment, does not give the assignee rights against the obligor and so the obligor continues to account to the assignor. Apart from whether that is a correct understanding of an equitable assignment of a contractual right, there are two problems with this answer. First, it is an answer that is not based on the contract view. Second, upon receipt of notice of an equitable assignment the obligor cannot obtain a discharge by accounting to the assignor.

61 This is distinct from partially assigning an assignable right which is effective in equity to constitute the assignor and assignee co-owners.

62 See also Rhone v Stephens [1994] 2 A.C. 310, 317 per Lord Templeman; Bahr v Nicolay [No. 2] (1988) 164 C.L.R. 604, 648 per Brennan J. See further Owners of Strata Plan 5290 v C.G.S. & Co Pty Ltd. [2011] NSWCA 168, (2011) 281 A.L.R. 575.

63 See further, Performing Right Society Ltd. v London Theatre of Varieties Ltd. [1924] A.C. 1, 29 per Lord Sumner.

64 That debate is linked to whether the joinder of the assignor in an action is a matter of procedure or a matter of substantive law and whether that varies with whether the assignee claims a common law remedy, an equitable remedy to protect legal rights or an equitable remedy to protect equitable rights. There are also issues around whether there is an incongruity in the law between when the assignee calls for performance as opposed to commencing an action for non-performance. A similar incongruity arises with the notion that upon notice the obligor cannot obtain a discharge from the assignor but the assignee cannot obtain a remedy in its own name against the obligor. Related issues concern differences to approaches to enforcement when the assignment is of a legal interest not assignable at law. Despite strong doctrinal arguments for joinder being substantive where the assignee seeks a common law remedy, in the context of assignment the weight of modern English authority is that the joinder of the assignor is procedural, it is to ensure the assignor is bound by the decision and has his or her chance to contest the assignment rather than to have the legal title holder before the court, see Roberts v Gill & Co [2010] UKSC 22, [2011] 1 A.C. 240, 263 per Lord Collins, at 278 per Lord Clarke, cf., Barbados Trust Company Ltd. v Bank of Zambia [2007] EWCA Civ 148 at [102], [2007] 1 Lloyd's Rep. 495, 515 per Rix L.J.; Long Leys Co Pty Ltd. v Silkdale Pty Ltd. (1991) 5 B.P.R. 11,512, 11,518; Jennings v Credit Corp Australia Pty Ltd. (2000) 48 N.S.W.L.R. 709; Hazard Systems Pty Ltd. v Car-Tech Services Pty Ltd. [2013] NSWCA 314 at [16]. Although rarely departed from, the fact that a departure is possible shows that joinder is not a substantive requirement under the present law and that assignment operates in a fused system. Although the substantive need for joinder appeared in early cases it disappeared and interestingly only resurfaced in recent years, see Smith, Marcus, “Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees” (2008) 22 Trust Law International 140Google Scholar, 144ff. It was during this intervening period that not only did the procedural view of joinder come to the fore but also equity began to recognise that these transactions are true assignments and not merely binding between the assignor and assignee. These are related events. The result is commercially sensitive and avoids the complexity that one must engage in to provide that result through a strict doctrinal route, see Tolhurst, G.J., “Equitable Assignment of Legal Rights: A Resolution to a Conundrum” (2002) 118 L.Q.R. 98Google Scholar. It reflects the impact of a gradual development of the law of assignment over many decades. This is not a case of lost knowledge. Care must therefore be taken before characterising the approach of equity to assignment by reference to old decisions.

65 Roberts v Gill & Co [2010] UKSC 22, [2011] 1 A.C. 240, 263 per Lord Collins.

66 Fitzroy v Cave [1905] 2 K.B. 364, 372–3 per Cozens-Hardy L.J. Indeed even when equity merely intervened to hold the assignor to his or her promise, it is possible to find statements that the court considered this to be a method of conveying title, see Wright v Wright (1749) 1 Ves. Sen. 410, 412, 27 E.R. 1111, 1112. To insist there is no transfer on the basis that equitable assignments of legal rights merely create rights puts too high a premium on doctrine, or an aspect of doctrine, at the expense of the intention and expectation of the parties of the parties and the legal effect of the transaction.

67 Commissioner of Stamp Duties (Queensland) v Livingston [1965] A.C. 694, 712; Cooney v Burns (1922) 30 C.L.R. 216, 232–3 per Isaacs J. See also, Smith Kline & French Laboratories (Australia) Ltd. v Secretary, Department of Community Services and Health (1990) 95 A.L.R. 87, 135–6 per Gummow J. (affirmed (1991) 99 A.L.R. 679).

68 Norman v Federal Commissioner of Taxation (1963) 109 C.L.R. 9, 33–4 per Windeyer J.

69 The need to recognise a trust in order to give effect to equitable doctrine in such circumstances is relevant in a small number of situations and generally not necessary even when this traditional approach is resorted to, e.g. FCT v Everett (1980) 143 C.L.R. 440. Statements can be found that equitable assignments took effect by way of trust. Such an approach made perfect sense in a period where equity did not recognise the chose as property for the purposes of transfer and instead was at a stage of using its remedies and institutions to hold the assignor to its promise. However, equity has long passed that point and, as noted, rarely has to resort to a trust to give effect to an assignment. It is a totally different thing for equity to require the assignor to hold the fruits of a contract on trust for the benefit of an assignee: that merely protects the assignee, the trust is not giving effect to the assignment. Cf., James Edleman and Steven Elliot, “Two Conceptions of Equitable Assignment” (a paper delivered at the TC Beirne School of Law Current Legal Issues Seminar Series, 2013: http://www.law.uq.edu.au/cli-2013-program).

70 R v Chester and North Wales Legal Aid Area Office (No 12) [1998] 1 W.L.R. 1496, 1501 per Millett L.J. In theory if the efficacy of an assignment is not dependent on specific performance then an assignment in the face of a promise not to assign might be effective, but whether equity would enforce it at the suit of the assignee is a distinct issue. Much depends on the circumstances, as noted in note 8 above, in the case of a transfer in breach of a pre-emptive right the transferee will obtain good title to the subject property if it was not involved in any wrongdoing.

71 Being a matter of construction the extent to which a right is personal depends on the facts; it may be assignable to a certain group or it might be personal for the purposes of ensuring some counter-performance or position and when that performance is received or the position obtained it can then be assigned.

72 Ames, J.B., Lectures on Legal History (Cambridge, Mass. 1913), 210 pp. 211–12Google Scholar. See also Bailey, S.J., “Assignments of Debts in England from the Twelfth to the Twentieth Century” (1932) 48 L.Q.R. 248Google Scholar at p. 257 and 547 at pp. 549–50.

73 Peters v General Accident Fire & Life Assurance Corporation Ltd. [1938] 2 All E.R. 267, 269, 270 per Sir Wilfred Greene M.R. See also, Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak (2006) 67 N.S.W.L.R. 569, 604.

74 Tolhurst v The Associated Portland Cement Manufacturers (1900) Ltd. [1903] A.C. 414.

75 Devefi Pty Ltd. v Mateffy Pearl Nagy Pty Ltd. (1993) 113 A.L.R. 225, 235; Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [32]; (2006) 230 A.L.R. 56, 64.

76 For an academic argument see Corbin, A.L., Corbin on Contracts (St Paul, Minn, West Publishing 1951), vol. 4, para. 865.Google Scholar

77 Meagher, R.P., Heydon, J.D. and Leeming, M.J., Meagher, Gummow and Lehane's Equity, Doctrines and Remedies, 4th ed., (Sydney 2002)Google Scholar, para. 6.445. See also, Holdsworth, W.S., “The History of the Treatment of Choses in Action by the Common Law” (1920) 33 Harv. L. Rev. 997, 1022–3Google Scholar (reprinted with minor amendments in Holdsworth, W.S., A History of English Law, 2nd ed., (London 1937), vol. 7, 515 pp 538–9Google Scholar).

78 (2006) 67 N.S.W.L.R. 569, 606–608.

79 See further as to whether a prohibition on assignment and a clause that seeks to make the benefit of a contract personal are analogous, distinct or whether the latter encompasses the former and is broader, Turner, P.G., “Charges of Unassignable Rights” (2004) 20 J.C.L. 97, 111–116Google Scholar.

80 Indeed the fact the conscience of the obligor is bound upon notice suggests that such assignments are not merely operative as between the assignor and assignee.

81 Brice v Bannister (1888) 3 Q.B.D. 569.

82 Tolhurst, G.J., The Assignment of Contractual Rights (Oxford 2006)Google Scholar, paras 8.38–8.48.

83 See Ashby v Tolhurst [1937] 2 K.B. 242.

84 See e.g., Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] Bus. L.R. 1719.

85 See, Watford Electronics Ltd. v Sanderson CFL Ltd. [2001] EWCA Civ 317 at [41], [2001] 1 All E.R. (Comm) 696, 711; Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc [2010] EWHC 1392 (Comm) at [316], [2011] 1 Lloyd's Rep. 123, 177.

86 See e.g., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40, (2006) 230 A.L.R. 56.

87 Goode, Roy, “Contractual Prohibitions against Assignment” [2009] L.M.C.L.Q. 300, 306Google Scholar.

88 Thus, modern personal property securities legislation deems some non-security assignments to be security interests in order to ensure that they are perfected by registration and subject to the legislative priorities regime, see e.g., Personal Property Securities Act 2009 (Cth), s. 12(3).

89 See, eBay International A.G. v Creative Festival Entertainment Pty Ltd. [2006] FCA 1768 at [36]–[37], (2006) 170 F.C.R. 450, 461. Another approach to limit scalping is to draft the provision as a promise not to assign with an express right to terminate where there has been an assignment, see Hospitality Group Pty Ltd. v Australian Rugby Union [2001] FCA 1040 at [98]–[105], (2001) 110 F.C.R. 157 at 183–84.

90 That view has been forcefully argued, see Di Matteo, L.A., “Depersonalization of Personal Service Contracts: The Search for a Modern Approach to Assignability” (1994) 27 Akron L. Rev. 407Google Scholar. Cf., Tolhurst, G.J., “Assignment of Contractual Rights: The Apparent Reformulation of the Personal Rights Rule” (2007) 29(1) Australian Bar Review 4Google Scholar.